Tilley v State of Queensland (Queensland Health) (Disciplinary Decision)
[2024] QIRC 252
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- Tilley v State of Queensland (Queensland Health) (Disciplinary Decision)[2024] QIRC 252
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Tilley v State of Queensland (Queensland Health) (Disciplinary Decision)[2024] QIRC 252
Tilley v State of Queensland (Queensland Health) (Disciplinary Decision)[2024] QIRC 252
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Tilley v State of Queensland (Queensland Health) (Disciplinary Decision) [2024] QIRC 252 |
PARTIES: | Tilley, Vera (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2023/194 |
PROCEEDING: | Public Sector Appeal – Appeal against a disciplinary decision |
DELIVERED ON: | 25 October 2024 |
MEMBER: | Dwyer IC |
HEARD AT: | On the papers |
ORDERS: | Pursuant to s 562A of the Industrial Relations Act 2016 (Qld) I decline to hear the appeal |
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – consideration under s 562A of the Industrial Relations Act 2016 (Qld) whether to decline to hear appeal – where the appellant is employed as laboratory technician by the respondent – where the appellant failed to comply with the vaccination requirements contained in Health Employment Directive 12/21 Employee COVID-19 Vaccination Requirements – where the appellant invited to show cause as to why she should not be liable to discipline – where the appellant canvasses common suite of arguments already addressed by the Commission and Courts – whether the Commission should continue to hear the appeal – appeal grounds misconceived – submissions of appellant contain additional misconceived grounds – appeal will not be dealt with |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 562A, s 562B Public Sector Act 2022 (Qld) s 131 |
CASES: | Gerner v Victoria [2020] HCA 48 Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 Kassam v Hazzard [2021] NSWSC 1320 Tilley v State of Queensland (Queensland Health) [2023] QIRC 262 |
Reasons for Decision
Introduction
- [1]This decision assumes familiarity with the decision in Tilley v State of Queensland (Queensland Health) (‘Tilley’).[1] That decision dealt with Ms Tilley’s appeal against the decision to refuse her application for exemption from compliance with the Health Employment Directive 12/21 Employee COVID-19 Vaccination Requirements (‘the Directive’).
- [2]Tilley sets out much of the factual antecedents from which this matter now arises between Ms Tilley and her employer, the State of Queensland (Queensland Health) (‘the respondent’).
Events subsequent to the decision in Tilley
- [3]On 18 September 2023, following the determination of the exemption application appeal in Tilley, Ms Tilley was issued with a show cause notice advising that the allegation against her had been substantiated. Ms Tilley was invited to show cause why she should not be subject to disciplinary action (‘the decision’).[2]
- [4]Ms Tilley was provided seven days to respond. Instead, on 29 September 2023, Ms Tilley filed this appeal.
Appeal merits in doubt
- [5]Ms Tilley, unlike most other appellants with similar appeals, has already had the benefit of an appeal hearing and written reasons delivered in her previous appeal (Tilley). The reasons in Tilley address many of the commonly misunderstood and complained of facets of the vaccine mandate, vaccine safety, and the lawfulness of the Directive. Included in the written reasons in Tilley were comprehensive references to the multitude of authorities of this Commission explaining inter alia the lawfulness etc of the Directive or dispelling other spurious arguments about it or vaccines.
- [6]Having reviewed the material accompanying Ms Tilley’s appeal notice, it appeared that despite having the advantage of having been referred to a body of compelling authorities contradicting her arguments, none of them appear to have been considered by Ms Tilley in the preparation for this appeal. The submissions supporting her Appeal Notice immediately revealed that she was intending to advance a collection of familiar misconceived arguments about the directive and the vaccines. Consequently, a mention of the matter was listed for 16 February 2024.
- [7]The Commission advised Ms Tilley at that mention that consideration was being given to the exercise of the discretion available under s 562A of the Industrial Relations Act 2016 (Qld) ('IR Act') to not hear her appeal. Consistent with the requirements of s 562A(3) of the IR Act, Ms Tilley was then directed to provide submissions outlining that she has ‘an arguable case for the appeal’.
- [8]Directions requiring Ms Tilley to address the Commission on her ‘arguable case’ were issued on 16 February 2024. Ms Tilley filed her submissions as directed on 15 March 2024.
Legislation
- [9]Section 562A of the IR Act relevantly provides:
- 562ACommission may decide not hear particular public service appeals
…
- (3)The commission may decide it will not hear a public service appeal against a decision if—
- (a)the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or
- (b)the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal—
- (i)is frivolous or vexatious; or
- (ii)is misconceived or lacks substance; or
- (iii)should not be heard for another compelling reason.
(Emphasis added)
Submissions
Ms Tilley
- [10]Section 562A(3)(b) of the IR Act requires me to hear submissions from Ms Tilley as to why she has ‘an arguable case’ before I can exercise the discretion not to hear her appeal. While I accept that s 562A(3) does not confine an appellant to the grounds pleaded in their Appeal Notice it is helpful to first consider those grounds to gain insight into what is said to have formed the basis of the appeal.
- [11]The submissions accompanying Ms Tilley’s Appeal Notice reveal a familiar potpourri of grounds upon which she contends the decision to find her liable to discipline is unfair and unreasonable. They can be summarised as follows:
- The role description she applied for in 1996 did not mention following directives regarding vaccinations.
- The suggestion that her employment contract obliged her to comply with a reasonable direction is flawed because she does not have an employment contract.
- The Directive is ‘not a mandatory law’.
- The mandate is bribery or coercion.
- Vaccines are both ineffective and unsafe.
- Her objection on the basis of her deeply held religious beliefs have been ignored while others have not.
- The proposed penalty of termination of employment is excessive.
- [12]On 15 March 2024 Ms Tilley filed her submissions. They were supposed to address why she had ‘an arguable case’. One would expect the proper way to demonstrate why a case was arguable would be to attempt to highlight distinctions between the grounds of appeal pleaded and other appeals that had been dismissed. Alternatively, an appellant might attempt to demonstrate why one or all of their grounds of appeal carry some unique public interest or precedent value. Instead, Ms Tilley filed submissions that could most kindly be described as poorly constructed legalese.
- [13]The submissions as a whole border on nonsensical. They are peppered with references to various authorities of various courts but omit any reference to corresponding ratio decidendi she relies on for her substantive argument (though the contentions accompanying these references are plainly misconceived in any event).
- [14]Relevantly, the submissions filed by Ms Tilley barely expound the grounds of the appeal that she had set out in her Appeal Notice. Indeed, only some of those grounds are (superficially) revisited. Instead, without notice to the Commission or respondent, or leave to amend her appeal grounds, Ms Tilley’s submissions are almost entirely devoted to (attempting) to introduce multiple challenges to the lawfulness of the Directive and the validity of certain statutes.
- [15]The foundation of these contentions is centred around s 51 of the Commonwealth of Australia Constitution Act (‘the Constitution’). The essence of Ms Tilley’s submission is best captured by this extract:[3]
On and for the record, I am challenging the authority of Queensland Health to bring disciplinary action against me with regards to my employment, including loss of income...on grounds that the authority to mandate a medical treatment as a condition of new or continued employment (and remuneration) cannot be conferred on the parliament of Queensland, nor the Commonwealth, nor any executive officer under the Constitution including Queensland Health or any of its delegates.
My defence arises by way of collateral attack on the Hospital and Health Boards Act for invalidity under protections 1) granted by s 51(xxiiiA) of the Constitution and secondly, arising under s 51(ix) of the Constitution as well as under s 92 of the Constitution.
…
I seek remedy of finding the Act invalid (to what extent) and as a consequence, compensation and having my job re-instated and an apology letter to myself and anyone in the State of Queensland, employed by Queensland Health for being civilly conscripted to vaccinate via a practical and legal compulsion…to adhere to a coercive threat using the force of a lawful penalty to disincentivise non-compliance.
- [16]
- [17]Ms Tilley’s submissions state:
My appeal to this repository of power therefore is futile if I argue on the grounds of reasonableness and proportionality and “fairness”, and it is my right to argue my defence on Constitutional grounds.
- [18]Ms Tilley follows this submission by posing a series of “questions of law” which, in essence, request the Commission to provide legal advice to Ms Tilley regarding a number of matters she apparently thinks are relevant, including questions about the jurisdiction of the Commission to deal with the constitutional matters.
- [19]The grand finale to Ms Tilley’s submissions is an assertion that the Hospitals and Health Boards Act 2011 (Qld) ‘is inconsistent’ with the Fair Work Act 2009 (Cth), a situation which she describes as ‘repugnant’ to the Constitution pursuant to s 109 of the Constitution. There is so much that is wrong with this submission, it is difficult to even begin to address it.
- [20]In summary, not only does Ms Tilley fail to make any submissions about why the appeal she filed is ‘arguable’, but she purports to open up a raft of even less meritorious, misconceived arguments. The submissions are so poorly constructed they do not warrant further articulation. I will address the consequences of this failing later in these reasons.
Respondent’s submissions
- [21]In light of the failure by Ms Tilley’s submission to demonstrate an arguable case, I do not intend to expend further resources of the Commission in summarising the submissions of the Respondent. Suffice to say the Respondent supports the exercise of the Commission’s discretion not to hear the appeal.
Consideration
- [22]Ms Tilley seeks a review of a decision which finds her liable for discipline for failing to comply with a lawful and reasonable direction, namely the Directive. Ms Tilley’s Appeal Notice sets out the grounds upon which she sought the review. None of those grounds is novel, and similar grounds have failed (multiple times) in other appeals.[6]
- [23]Further, Ms Tilley’s arguments invoking s 51 of the Constitution (as best they can be understood) are equally misconceived.[7] Additionally, if Ms Tilley genuinely wants to make a constitutional challenge to the validity of either the Directive or other statutes, it is the High Court of Australia that is vested with original jurisdiction to determine such a claim.
- [24]Having regard to Ms Tilley’s disordered and misconceived submissions, I am not entirely convinced the arguments she promotes are genuinely held views. On the contrary, I consider they are a simple veneer that has been awkwardly applied in an effort to disguise her conventional but plainly futile grounds of appeal.
- [25]Despite their nonsensical qualities, Ms Tilley’s submissions (in places) reveal glimpses of what Ms Tilley’s real grievance is. Ms Tilley submits:[8]
I seek remedy of finding the Act invalid (to what extent) and as a consequence, compensation and having my job re-instated and an apology letter to myself and anyone in the State of Queensland, employed by Queensland Health for being civilly conscripted to vaccinate via a practical and legal compulsion…to adhere to a coercive threat using the force of a lawful penalty to disincentivise non-compliance.
- [26]At the very heart of this matter is the simple fact that Ms Tilley objects to the direction that she must be vaccinated in order to continue to attend her place of work. It is no more complex than that. Further, the reasons for Ms Tilley’s objections to vaccination are equally clear and simple: she objects on grounds of her religious beliefs and further, she does not consider that the covid vaccines are safe or efficient, and therefore not necessary.
- [27]Because Ms Tilley so vehemently holds to these views, and because the vaccine mandate plainly generates in her an irrepressible (but misplaced) sense of injustice, she has attempted to contort her personal sense of being wronged into the form of a Constitutional challenge. But despite the rather grandiose concepts that she has ineptly cobbled together in her submissions, the briefest of scrutiny causes that façade to collapse, and revealed in the rubble are the same old tedious arguments about ‘civil conscription’ and ‘coercion’.
- [28]Yet again, I am compelled to remind Ms Tilley that the resources of this Commission are drawn from the public purse. While access to justice remains an important tenet of our society, such access does not extend to unreasonable individuals who refuse to accept the futility of their arguments and instead, seek to press stubbornly on. Such conduct is a serious abuse of the resources of the Commission at the expense of other litigants seeking the resolution of their genuine controversies.
- [29]The submissions accompanying the Appeal Notice are misconceived. The submissions filed by Ms Tilley purporting to demonstrate her ‘arguable case’ are even more misconceived.
- [30]In all of the circumstances I do not intend to deal with the appeal.
Order
Pursuant to s 562A of the Industrial Relations Act 2016 (Qld) I decline to hear the appeal.
Footnotes
[1] [2023] QIRC 262 (‘Tilley’).
[2] That is, a failure to comply with the Directive.
[3] Ms Tilley’s submissions filed 15 March 2024, [5], [6], [9].
[4] Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2.
[5] Ms Tilley’s submissions filed 15 March 2024, [14].
[6] Bakhash v State of Queensland (Department of Education) [2022] QIRC 362; Elliott v State of Queensland (Queensland Health) [2022] QIRC 332; Endicott v State of Queensland (Queensland Health) [2024] QIRC 23; Gatongi v State of Queensland (Department of Education) [2024] QIRC 233; Thorley v State of Queensland (Department of Education) [2022] QIRC 133; Schimke v State of Queensland (Department of Education) [2022] QIRC 136; Allison v State of Queensland (Department of Education) [2022] QIRC 152; Nicholas v State of Queensland (Department of Education) [2022] QIRC 157; Tadeo v State of Queensland (Department of Education) [2022] QIRC 177; Carr v State of Queensland (Department of Education) [2022] QIRC 188; Gorry v State of Queensland (Department of Education) [2022] QIRC 196; Tribe v State of Queensland (Department of Education) [2022] QIRC 203; Prentis v State of Queensland (Department of Education) [2022] QIRC 212; Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269; Brailey v State of Queensland (Department of Education) [2022] QIRC 401; Graf and Ors v State of Queensland (Department of Education) [2022] QIRC 451.
[7] Kassam v Hazzard [2021] NSWSC 1320, [261]-[277]; Gerner v Victoria [2020] HCA 48 (‘Gerner’). As an aside, Ms Tilley contends the High Court ‘erroneously’ defined the term ‘quarantine’ in Gerner.
[8] Ms Tilley’s submissions filed 15 March 2024, [9].